HA Exclusive: A conversation with Scott Fenstermaker

posted at 8:48 am on November 25, 2009 by Ed Morrissey

Yesterday, I published a letter I received from a source within the DoD from the Office of the Chief Defense Counsel, in the Office of Military Commissions, that suspended Scott Fenstermaker as one of the civilian defense attorneys for the tribunals at Guantanamo Bay. At the time, I tried contacting both the OMC and Fenstermaker in order to get statements about the authenticity of the memo and the circumstances surrounding the suspension. In the evening, I did receive an initial response from Fenstermaker with a statement for publication, which I added to the original post in an update.

Afterwards, Fenstermaker contacted me again, offering to share more documents related to his suspension, as long as I agreed to publish them in full. The documents give a broader context to the issue. In our e-mail exchange, which I will publish in this post in full with Scott Fenstermaker’s permission, Fenstermaker says he was never told why he was suspended other than the vague allegations in the original August 29, 2008 memo of not being “forthright” and of “counterproductive” interactions. He attempted to argue for his reinstatement, but never heard anything back from the OCDC. In fact, Fenstermaker asks me to let him know if I get an answer from the DoD.

To set the stage, here’s his suspension letter, which I published yesterday:

Three months later, Fenstermaker received a letter from the OMC/OCDC notifying him of what appears to be an automatic review of his suspension. The letter asked Fenstermaker to notify them if he wanted to pursue reinstatement:

Less than three weeks later, Fenstermaker responded to both Col. David and Col. Kryzminski, challenging the basis of his suspension. He refused to reapply, considering it tantamount to an endorsement of the suspension, and asked again for the details of the allegations:

Three months later, Fenstermaker got a reply from Col. Masciola, the new Chief Defense Counsel for the OMC, that rejected his argument about the suspension. Masciola ruled that certification was completely within the discretion of himself and his predecessor Col. David, and did not supply him with any explanation at all about the allegations against Fenstermaker. Masciola did, however, agree to lift the suspension against Fenstermaker for one client only — Ghailani, who had demanded Fenstermaker as his representative during a hearing:

Meanwhile, Fenstermaker says that the DoD has apparently set up their Internet systems to block his website, something he only discovered when one of his former clients, Ammar al-Baluchi(Khalid Sheikh Mohammed’s nephew and Ramzi Binalshibh’s cousin), informed him of it. According to this screen shot allegedly taken by al-Baluchi, Fenstermaker’s URL is now listed as a “malicious web site”:

As I noted above, Fenstermaker and I had a lengthy e-mail conversation last night after he sent me the information. I’ll post it unedited, with Fenstermaker’s contributions in block quotes, for Hot Air readers to see in full. At the end, I’ll add my thoughts.

Ed,

The appropriate person to contact regarding my suspension is Colonel David. I wrote to an officer in the Office of the Chief Defense Counsel, of which Colonel David used to be in charge, seeking clarification of the issues you raise. They never responded.

Scott

Scott,

Thank you for your response. I have submitted that question to several people at the DoD, including the media contact for the military commissions. I’ll add this to my post in order to make sure that people understand that.

Ed,

I don’t know what your perspective is, but there was some follow-up correspondence to my suspension letter. If you would like the sum total of it, let me know and I will forward it immediately. I only ask that you print all four letters on your website/blog. I think your readers would find the government’s letters interesting.

Scott,

Thank you – I would be interested in seeing them. If I print anything — and it’s a good story, so I’d be inclined to do so — I would, as you request, print them all in full. In fact, since I printed the suspension letter, I think it would be rair [sic] to let people read the entire correspondence and judge the full exchange in context. If you shoot them over to me tonight, I’ll have them up in the morning.

Ed,

As you requested. Let me know if you have any questions. You should know that about 12 or 13 days after the 9/11 defendants learned of my suspension, they fired all of their attorneys and attempted to plead guilty.

Scott,

Thank you, much appreciated. Your reply to the OCDC was very interesting; I’m assuming you have not heard anything specific in response. I’m curious about the guilty pleas; do you think that is related to your suspension? If so, how so (or would you not care to speculate)?

Ed,

I never heard any response to my letter to the OCDC, other than Colonel Masciola’s March 16, 2009 letter. Not an e-mail, letter, phone call, tweet, blog, etc. I get asked all the time why I was suspended. My answer is usually “I don’t know.”

I believe the firing of the attorneys and the guilty pleas are related to my suspension, but in order to explain why, we would have to have a lengthy conversation about the events leading up to their early November firing of the attorneys and attempted guilty plea. The military defense attorneys, and the civilian attorneys they selected to assist them, have been heavily involved in violating these guys’ rights. Amazingly enough, the ACLU and the National Association of Criminal Defense Attorneys were involved in assisting in these violations, and went so far as to pay civilian attorneys to do legal work, with donated funds, to violate these guys’ rights. Little, if anything, is known about this by the public, but the detainees are intimately familiar with this problem, and have been victimized by it repeatedly. Hence, their contempt for the ACLU, which probably surprises many people, although not anyone familiar with what has gone on. The detainees have become understandably skeptical of assigned counsel, will almost certainly reject assigned counsel upon arrival in New York and, if the judge insists on assigning counsel, may put counsel in a position of physical danger (although I sincerely hope not).

Again, I don’t know your perspective, but I encourage you to be fair. The government is involved in egregious, and repeated, wrongdoing. That wrongdoing may not excuse the defendants’ misconduct, if any, but it has certainly fueled their anger against the United States government. By the way, are you aware that the United States Department of Defense has determined that my firm’s website is a “malicious website?” Mr. al-Baluchi informed me of this. See attached.

Scott,

I’m going to be as fair as I possibly can in presenting the material you have sent me, and I’d be happy to use the entire text of our correspondence as well in the post (mine and yours), but I want to double-check with you first; we didn’t discuss on- or off-the-record status after your initial e-mail to me. As far as the lengthier conversation, I wouldn’t mind at all hearing what you have to say. Of course, I reserve the right to have my own opinion on it, but I think you’ll find me a fair person for a conversation.

This question is off the record, and you can either answer it or not. The source who sent me the memo (who may have his own motives, of course) said that the rumor around the issues in the suspension letter was that you were a “9/11 Truther.” I didn’t print that, because there was no factual basis for the rumor; I can see arguing the Truther theory of 9/11 as a defense strategy, although I think it might be somewhat counterproductive in front of a NYC jury to try it, but that doesn’t necessarily mean you believe in it. Not sure if you want to address that at all, on or off the record. I’m just throwing it out there and won’t use it at all unless you want to address it specifically for the record. However, given your message below, I figure you may want to be aware of it.

Ed,

You can use anything and everything I sent to you, so long as you don’t make things up.

I don’t know what a “9/11 Truther” is. If you explain it to me, I’ll let you know if I’m one. My involvement in this defense has nothing to do with 9/11 at any level. My wife and my oldest daughter were within 200 yards of the South Tower when both planes went in that morning and I was scared as hell. I was crying watching it, and cried for months after reading those blubs the NY Times wrote about the victims. Having said that, I am a lawyer, in every sense of the word. I was born to defend people and love every minute of doing so. That’s what I do for a living and it is my calling. I’m also a graduate of the United States Air Force Academy (class of 1984) and the United States Air Force’s prisoner of war training (SERE), which has become somewhat famous because of the CIA’s use of it torture my clients, and others. I’m in this so that no other country or foreign people can ever say that no American stood in defense of these men. I will defend them with my last dying breath.

Any questions?

Scott

P.S. You can print this entire e-mail if you want.

Scott,

Well, if you have managed to avoid the Truthers, you’re better off. It’s a set of conspiracy theorists that claim that the US gov’t brought down the WTC buildings in a controlled demolition, that the planes were military planes and not commercial flights, and that it was a missile that hit the Pentagon, all to give Bush a pretext to grab Iraq’s oil fields.

Just for the record, I believe that the defendants should have proper and dedicated representation, regardless of what venue gets chosen (commissions or federal court). I adamantly believe that commissions are the proper venue, however. Just so you know where I’m coming from.

Ed,

I have no idea who attacked the WTC, and couldn’t care less. We have much bigger problems right now than rehashing yesterday’s news. The military commissions were a bad, and frightening idea. The military cannot be trusted with them (see my suspension letter). By the way, if you ever get an explanation of why I was suspended, please share it with me. I need the comic relief. I will not be part of their “proper and dedicated representation,” but will watch with interest as this plays out. I do have fears that they will hurt which ever attorneys are assigned to them, and I will personally ask the Justice Department to make sure the attorneys are protected.

Scott

Scott,

Thanks for the conversation this evening. I’ll be posting it tomorrow morning, along with all of the documents; would love to talk more about the issues surrounding the case in the future. Drop me a line any time. My best to your family. And if I do hear from the DoD with anything substantive, I will be sure to alert you immediately.

===========

So what to think? I have nothing against the notion that the detainees should get representation, and that their attorneys should work hard on their behalf — although I also strongly believe that should take place in a military tribunal for war criminals captured abroad. I should also note (as you can see by reading this) that Scott was very responsive to my questions. And if the memos are the complete record of the conversation between Scott and the DoD, I agree that they owe him a better explanation of the reasons for his suspension. It seems more than a little strange that they didn’t provide him with more details of the allegations while asking him to respond to them for a potential reinstatement.

Frankly, though, a couple of things here bother me. I can allow for the idea that some people have never heard of 9/11 Truthers, especially people who don’t marinate in politics or the law, but an attorney representing defendants in a 9/11 case? I find that very, very hard to believe, especially since it could be a defense strategy, although not a terribly good one. The ACLU as an enemy of the 9/11 defendants sounds like an interesting story, and perhaps I’ll find out more later, but it seems equally farfetched. I’m not saying either are impossible, but unlikely? You make the call.

Update: Just as I did yesterday, I erroneously wrote “Fensterman” instead of Fenstermaker a couple of times in the post. I have it corrected now; thanks to Roger B for pointing it out.

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